Temptation to evade public disclosure is always there

As a taxpayer and a citizen, you have a right to know what public officials and government employees are doing with their work time and your money. Our public records laws help ensure that right.

But what is to prevent officials from evading those laws? Unfortunately the answer is, not much. It’s not exactly an honor system, but it’s darn close.

The reality is, we rely mostly on trust that public records requests are fulfilled completely and honestly. The temptation is always there to avoid revealing embarrassing or controversial records to the public and the press. Moreover, the disappearance of a relevant record is not always a provable fact.

I don’t want to paint a picture that’s all secrecy and subterfuge. The vast majority of public records requests are fulfilled honestly, and they frequently do include information that officials might prefer not to reveal. Instances of evasion may not always about secrecy, either; sometimes it’s just about the hassle. As the Wenatchee World wrote recently, “some people in government think this whole public records thing is a pain in the patoot.”

There are plenty of ways to avoid that “pain in the patoot,” and plenty of examples of it happening in real life.

Simply deleting emails or losing files – Maybe a campaign supporter wrote to a government email address with an inappropriate request, or an ally wrote something disparaging about the opposition. Maybe the boss sent an embarrassing note. The “solution” may be to delete the email and hope it clears off the server before anyone requests it, or accidentally trip and have a file fall into the paper shredder. After the fact, who can prove it took place?

Shifting communications to private devices and accounts – Appointees in the Bush and Obama administrations conducted government business routinely on their private email accounts and phones. Not only did this put these communications in their more direct control, but it kept them from being searched for disclosure by more dispassionate agency employees, such as IT professionals and public records officers, who might be less concerned about the political consequences of disclosure.

Using pseudonymous email accounts – Plenty of public officials have used this tactic in recent years, including former EPA Administrator Lisa Jackson, infamous former IRS official Lois Lerner, former Secretary of Health and Human Services Kathleen Sibelius, and President Obama. They needn’t have feared a crackdown on the practice by the Department of Justice – former Attorney General Eric Holder did the same thing.

Setting up a private server – Few took it that far, but as Hillary Clinton has made painfully clear, it’s an option. Her many excuses for doing so, which started with the supposed reason that she wanted to carry just one device, have been systematically dismantled. The many excuses show that she knows she can’t say the truth, that she has a penchant for secrecy and control that frequently come back to bite her.

What’s the answer to these problems? It starts with better training of public servants and a clear expectation from agencies that their employees conduct public business on government devices and accounts. Our state and federal disclosure laws, originally put in place well before email, cell phones, and instant messaging, need to be updated as well.

We can’t eliminate these problems entirely – there will always be an element of trust involved when it comes to compliance – but we can reduce the opportunities for evading the law.
-Rob McKenna

Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.